Boserio v Thornton [1998] QMW 76

20295MLA.MAR © 1998 1 IN THE WARDEN’S COURT OF QUEENSLAND HELD AT BRISBANE IN THE MATTER OF: APPLICATION UNDER PART 7 OF THE MINERAL RESOURCES ACT 1989 FOR A MINING LEASE (NUMBER 20295) IN THE MAREEBA DISTRICT BEFORE: MR F W WINDRIDGE, WARDEN APPLICANT: Brian Augustine BOSERIO OBJECTOR: David Garner THORNTON REPORT: Brian Augustine BOSERIO (hereinafter referred to as the miner or applicant miner) seeks a mining lease under the provisions of part 7 of the Mineral Resources Act 1989 (hereinafter referred to as the MRA) for the purpose of mining for BUILDING STONE namely SANDSTONE and SLATE, and the establishment of infrastructure namely TREATMENT PLANT, WORKSHOP, LIVING QUARTERS and TOURIST FACILITIES. The application is for surface area of 13.87 hectares and is situated on LOT 581, CF 15, being part of GHPL 14/232, County of CHELMSFORD, Parish of WHUMBUL, about 65 kilometres north of MT CARBINE. The application area is located on Curraghmore Station, and will be known as the River of Gold Slate Mine. Power to grant such a lease is vested in the Governor-in-Council pursuant to section 234 of the MRA after recommendation by the Minister. All minerals are the property of the [1998] QMW 76 -- 1 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 2 Crown. The grant of a lease does not create any estate or interest in the land (s.10), although there is the power to determine title to land (s.363(5)). The landowner has no right of veto. The use of the land for the purposes nominated is a permitted use under section 319 of the MRA and not subject to the provisions of the Integrated Planning Act, being exempt from the provisions of the Local Government (Planning and Environment) Act 1990 by virtue of section 319 (Part 8) of the MRA. The application was lodged at the Mining Registrar’s Office at MAREEBA on 3 JANUARY 1997. A certificate of application was issued on 22 JULY 1998 (s.252 (1)) setting the last date for receipt of objections as 26 AUGUST 1998 (s.252(2)). One objection was lodged pursuant to section 260(1) of the Act. That objection was lodged by the landowner David Garner Thornton (hereafter referred to as the owner or landowner). It will be appropriate to deal with the issues raised by the landowner as they arise during the course of this recommendation. It should be noted that the applicant miner currently operates on the application area being an existing Mining Lease (20064) held by him. This application relates to a small extension on the south-east corner area, and a further extension on the north-west corner. The new areas taken add about 1.53 hectares to the existing lease which is conditionally surrendered to allow the new application to proceed. The following matters have been taken into account and considered in making my recommendations. (s.269(4)). (a) Have the provisions of the Act been complied with? The material indicates that the Applicant is an eligible person as defined in section 5 of the Act and is entitled to make the application under section 232 of the Act. -- 2 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 3 The application area is not located on or forming part of any reserve, and I find that the application is therefore not in respect of land over which, pursuant to s.238(1) of the Act, a mining lease shall not be granted without the consent of another person or persons. There is no relevant permanent building or relevant feature on the land as defined in s.5 requiring the consent of any person (s.238(1)). At the time of marking out and lodging the application, the applicant was the holder of PROSPECTING PERMIT 20590 (s.232(1)). A declaration of posting was lodged on 31 AUGUST 1998 (s.252(9)), and service of documents was in accordance with s.399. I am satisfied, on the material, including the uncontested information in the application form and the declaration of posting and advertising that all the provisions of the Act have been complied with or substantially complied with. (s.392). The hearing was conducted at the Wardens Court at Mareeba on 26 November 1998, the matter having been previously mentioned at Mareeba on 15 October 1998. On 26 November 1998 the objector gave evidence in support of his objections. The applicant gave evidence in support of his application. (b) Is the land mineralised or is the other purpose for which the lease is sought appropriate? I am satisfied that the resources sought are minerals (s.5), and that the proposed infrastructure is necessary to assist in the winning of those minerals. (s.234(1)). I accept the Applicant’s advice and I am satisfied on the information given that the purpose for which the lease is sought is appropriate. The application area is basically covered by the existing Mining Lease 20064 which has extraction pits from old and current workings. The seams of sandstone and slate are visible from the surface as shown in the sketch plan attached to the EMOS. I am satisfied from the current operations and -- 3 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 4 surface signs that sufficient evidence of mineralisation exists to justify the grant of a lease. (c) Will there be an acceptable level of development and utilisation of the resources within the area applied for? From documentation lodged with the application, I am satisfied the applicant has sufficient resources to progress development to an acceptable level. The applicant is currently producing from his existing lease. The additional area will be utilised for construction of a shed to house production machinery and allow for the stockpiling of overburden within the lease area. (d) Is the area sought an appropriate size and shape? There is nothing in the information supplied by the Applicant to suggest that the surface area of the land over which the mining lease is sought is not an appropriate size and shape. The shape covers the area of mineralisation and additional land needed for infrastructure purposes, including all the land in ML 20064. There is no evidence of any conflict with the boundary of any other tenement and therefore the cost and delay of a survey would appear to be not warranted. (e) Is the term sought appropriate? The term of lease applied for is 20 years. I am satisfied that the term sought is appropriate and will allow for mining and rehabilitation to be completed. It is generally accepted in the building stone industry that longer term leases are desirable in order to establish a market and enter into long term supply contracts with a product of consistent quality. The applicant has the option of renewal under section 286 of the Act, or surrender at an earlier date under section 309. -- 4 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 5 (f) Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? From the information supplied, I am satisfied the applicant has the necessary financial and technical capabilities or access to those resources to carry out the mining operation. Removal of the sandstone and slate is basically an extractive industry utilising shallow open cuts and does not require extensive plant, processing equipment, or large injections of capital. The applicant has mined slate and sandstone for a number of years and has developed a system to assemble and manufacture tiles. In my opinion he has the experience necessary to complete the mining operation. [Carr –v- Simnovec (1980) 26 SASR 263 at 268, and Pacminex –v- Aust. Nephrite Jade Mines (1974) 7 SASR 401 at 415]. (g) Has the past performance of the applicant been satisfactory? There is no material before me to suggest that the past performance of the Applicant has been unsatisfactory. The applicant has operated on ML 20064 for at least 8 years. The local Field Officer and Environmental Officer will be available to monitor performance and rehabilitation and report any breach of conditions. The Inspectorate should monitor the methods adopted for mining, ensuring that industry standards are maintained and that all machinery is operated in a safe and competent manner by licensed persons. From an inspection conducted on 25 November 1998, it was observed that the pit area, the processing area and the living areas were tidy and well kept. (h) Is there any disadvantage to the holder of or applicant for exploration permits or mineral development licences? The applicant was the holder of the relevant pre-requisite exploration title at the time of marking out, and was also the holder of ML 20064. It does not appear that the holder of or applicant for any other exploration permit or mineral development licence has been affected. -- 5 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 6 (i) Will the operations to be carried on under the proposed lease conform with sound land use management? The land could be used for low intensity grazing under favourable conditions, and it seems the proposed mining operation will cause no significant disturbance to stock or stock watering or management facilities. The general nature of the land is described as a rocky outcrop with skeletal soils and undulating in nature. Land is class VII ie suitable for low intensity grazing with the pit area Class VIII. There is no arable top soil. Rainfall is low. Stock fodder is generally of poor quality on the application area with little or no fodder in deficit rainfall years. My opinion of land use management is confirmed by the fact that the area has virtually been fenced off from the balance of Curraghmore Holding for quite a number of years, and is basically unused by the landowner. Information has been supplied as to the Applicant’s site management proposals. The evidence leaves me with no reason to believe that the proposed mining operations do not conform with sound land use management. (j) Will there be adverse environmental effects caused by the proposed operation, and if so, the extent thereof? An Environmental Management Overview Strategy (EMOS) has been lodged with the Registrar and accepted under delegation, subject to any recommendation of this Court and any further requirement of the Minister. The proposed mining activity is in an isolated area away from human habitation. The mining will not have any deleterious effect on any river or creek system. Chemicals will not be used in the mining process, although diluted acid will be utilised at some stage in the manufacturing process. This fluid is re-cycled through a sediment pond and re-used in the plant. Due to low rainfall and the method of mining, erosion will not be a problem. -- 6 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 7 There are no other environmental factors of significance which may be adversely effected by the operation which have not been addressed in the EMOS. (k) Will the public right and interest be prejudiced? No factors prejudicial to the public right and interest have been identified. It appears there are no endangered flora or fauna within the application area. There are no public utilities on or across the application area. There are no sites of historical interest or aboriginal significance within the area. If any such sites are identified, the EMOS can be amended to put forward specific site protection or site avoidance strategies. Access is off the “new” highway then on to the “old” highway, across the Reedy St. George Creek on to the lease area. Access is still through the land of Mr Thornton but at the far eastern end. (l) Has any good reason been shown for a refusal to grant the mining lease? The economic viability of this project is a commercial decision of the applicant. From my assessment of the current operations, it is obvious that a viable operation is currently running, and the addition of two small areas by this new application will facilitate operations and allow greater returns from the mining operation. When all other aspects of the application and the matters referred to in section 269 are taken into account, I am satisfied that the objects of section 2(a), (b), (c), (d), (e) and (g) will be attained if a mining lease is granted for the term recommended for the following reasons: ♦ A small scale operation is planned. ♦ It is unlikely that the land applied for is of any interest to a large scale miner. ♦ The location of the proposed mining operation and the proposed method of mining is unlikely to cause environmental or public interest concerns about safety. ♦ A realistic security deposit, subject to EMOS discounts if appropriate will be imposed to guard against financial failure of the miner to ensure rehabilitation is completed. -- 7 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 8 ♦ The applicant appears to have sufficient experience in the industry to accurately assess the potential of the project. ♦ There is a market for the product and the project will provide increased employment opportunities for unskilled workers in this district. The establishment of the factory will “value add” to the product, allow waste to be disposed of on site and save transport costs. No person claiming any right or interest under native title has lodged an objection. In my view, no good reason has been shown for a refusal to grant the lease application (Carr –v- Simnovec, Pacminex –v- Aust Nephrite Jade Mines supra). (m) Is the proposed mining lease operation an appropriate land use, taking into consideration the current and prospective uses of the land? The material indicates that the land is currently used for mining purposes and appears, on the evidence, to be suitable for no other use. In my view, there appears to be no risk of significant conflict between the current land use, or any prospective land use and the proposed mining operation. The landowner erected a fence many years ago some distance from the slate deposit and does not run stock in that area. The proposed mining operation appears, on the evidence, an appropriate land use, taking into account the current and prospective uses of the land. A compensation agreement or determination of the Court will compensate the landowner for any conflict or loss over land use (s.281). I note that a compensation agreement has been filed with the Registrar in accordance with s.279 of the Act, although in his evidence the landowner disputed the circumstances relating to the signing of that compensation agreement. I will now deal with the objections raised by the landowner. They may be separated into four headings ie “tourist facility”, the “factory”, “access road”, and “permanent buildings”. -- 8 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 9 (i) “the tourist facility” and “access road”. (These issues appear to be related in the mind of the objector, and it is therefore convenient to deal with those matters together). Immediately to the south of the current lease is a part of the old highway which leads to Cooktown. This old highway is still a gazetted road and capable of use by any person. It appears that the old highway is still shown on “tourist” maps as being the access road to the now dis-used Diane Copper Mine and Maytown. The landowner complains that tourists drive for miles through his property by using this road. He fears that if the applicant miner caters for tourists, there will be a further influx of tourists who will disturb his cattle and create some security risk to his cattle and property. The miner indicates that his access is via another route which is shorter and much more convenient. As far as the tourist facility goes, the miner indicates that he wishes to take advantage of all the tourists going to Cape York by inviting them to the mine and processing plant for a short visit. His principal purpose in inviting such tourists to the mine is to promote the product and hopefully create a bigger market for his product. The miner states that no overnight facilities will be provided for tourists. The miner has indicated that he would be prepared to assist by placing some signage in the appropriate places to divert tourists away from the landowners property to the more acceptable access track to the mine. (ii) “the factory” The landowner objects to the establishment of any factory which he fears will be permanent and left “in situ” unrehabilitated if the miner leaves the site. The applicant states that the factory will be a flat topped shed with no sides and easily removed. The purpose of the “factory” is to house the modules that will process the slate into tiles prior to packing and transport off site. The miner states it is too expensive to remove all the slate and process it at another site as suggested by the landowner because of the waste and the cost of transport. -- 9 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 10 (iii) “Permanent Buildings” The landowner also suggests that the miner must live in a caravan or “donga” and not put up permanent buildings. The miner gave evidence that he did live in a caravan at some stage, (he pointed out the concrete slab during the inspection), but has since built a temporary dwelling consisting of a flat roofed shed with iron sides. This serves as temporary accommodation for himself and any employees when mining is in operation. The miner indicates that this building will be easily dismantled with any flooring being placed in the sediment pit by his excavator at the conclusion of mining during the re- habilitation phase. I am not satisfied that there is any substance in the objections by the landowner for the following reasons – (a) any influx of tourist along a gazetted road is not a matter that the miner can control while the road remains a gazetted road. Any person can exercise an “as of right” use of that road until action is taken to close the road. It appears that the access to the Diane Copper Mine and Maytown is now through the Palmer River access road, and therefore it would be a simple matter to apply to close this part of the old Cooktown Road up to 30 or 50 metres south of the Reedy St George Creek bridge. That short clearance is needed for a turning circle for any heavy vehicles crossing the bridge and entering the lease area to load and remove product. The miner indicates that he has no desire to use that part of the road as access to the mine, and in fact can direct tourists to the mine by another route. This will totally remove tourists from the land of the owner except when they visit the mine. During their visits, such persons will be under direct supervision of the mine owner. The miner does not intend to provide overnight facilities for tourists but will cater for short educational visits during the days when the mine is operating. -- 10 of 11 -- Warden’s Court of Queensland 22 December 1998 20295MLA.MAR © 1998 11 (b) The factory will basically be a flat topped shed with no sides to house the modules that will process the loose slate into tiles, and will be easily removed. The Registrar will assess security deposits with the cost of removal and rehabilitation as a factor to be considered. (c) The temporary buildings, including the living accommodation currently in use, provide some level of comfort for a short or medium length of time, but can easily be removed at the conclusion of mining. For the reasons above, the objections are struck out. GENERAL COMMENTS This recommendation is based on an assessment of the information supplied. Should there be any dispute over damage or loss, or should the miner depart from his plan of operations or EMOS and cause loss or damage or interruption to the management of the property not envisaged or not foreseen in the terms of any compensation agreement, the parties are at liberty to apply to the Court for a determination or award of damages, and if necessary, injunctive relief under the powers contained in s.363(6). RECOMMENDATION: Upon consideration of all the matters set forth in s.269(4) of the Act, I recommend that the mining lease be granted over the whole of the application area for the purpose of MINING for SLATE and SANDSTONE, and for INFRASTRUCTURE PURPOSES associated with that mining including TEMPORARY LIVING QUARTERS, TREATMENT PLANT, WORKSHOP and TOURIST FACILITIES a term of 20 YEARS. (s.270(2)). Dated at BRISBANE this 22nd day of December 1998. F.W. WINDRIDGE MINING WARDEN -- 11 of 11 --